NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Arthur W. Devine, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
LOUISVILLE AND NASHVILLE RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood that:
(1) The Carrier violated the Agreement when it assigned the
work of grading, paving, track moving, and other related work at
Athens, Alabama to the Ellard Construction Company.
(2) Machine Operators C. M. Atwell and J. D. Clement be
allowed eight hours' straight-time pay at the Dragline Operator's
rate and the Endloader Operator's rates respectively for each work
day within the period from September 17 to October 9, 1964, both
dates inclusive, and also for the work day of October 20, 1964.
(3) Mr. B. A. Franklin and Mr. E. E. Hodges each be allowed
eight hours' pay at the truck driver's straight time rate for each
of the work days within the period from September 17 to October 9,
1964, both dates inclusive.
EMPLOYES' STATEMENT OF FACTS: From September 17 through
October 9, 1964 and on October 20, 1964, employes of the Ellard Construction
Company, who hold no seniority rights under the Agreement, were assigned
to perform paving work and to grade for, move, straighten and lower track
near the passenger station at Athens, Alabama. In the performance of this
work, the contractor's forces used equipment similar to that which the
Carrier owned and had available, i.e., bullgraders, a dragline, end loaders
and dump trucks.
The claimants were cut off employes on the seniority district where the
subject work was performed. They were available and fully qualified to
perform all of the subject work, and would have done so if the Carrier
had assigned them to it.
Claim was timely and properly presented and handled at all stages
of appeal, up to and including the Carrier's highest appellate officer.
and it was declined by the Director of Personnel on December 14, 1964, by
the following letter:
"LOUISVILLE AND NASHVILLE RAILROAD COMPANY
Office of Director of Personnel
Louisville, Kentucky
December 14, 1964
E-201-12
E-201
Mr. W. P. Gattis, General Chairman
Brotherhood of Maintenance of Way Employes
Nashville, Tennessee
Dear Sir:
Your letter of December 8, concerning claim of C. M. Atwell,
J. D. Clement, B. A. Franklin and E. E. Hodges that they be paid
for the work performed by Ellard Construction Company, Athens,
Alabama, between September 17 through October 9, inclusive, and
October 20, 1964, while engaged in grading and paving in connection
with lowering tracks near the passenger station.
In handling this matter with the Chief Engineer, we have been
furnished with a copy of his letter to you dated December 3, 1964;
and, in view of the circumstances as outlined therein, we see no
basis for the claim, and it is, therefore, respectfully declined.
We shall, however, be glad to discuss this matter with you at
our next conference if you so desire.
Yours truly,
/s/ W. S. Scholl
Director of Personnel"
The claim was then discussed in conference on February 25, 1965, at
which time it was again declined, and nothing further was heard from the
claim until notice was received from the Board of employes' intention to
file ex parts submission.
OPINION OF BOARD:
From September 17 through October 9, 1964
and on October 20, 1964, Carrier contracted with Ellard Construction Company to perform paving work and to grade for, move, straighten and lower
track near the passenger station at Athens, Alabama.
The Employes protested the contractor performing this work, alleging
that Claimants and equipment were available to have performed all the
subject work if 'Carrier had so assigned them to it.
Carrier takes the position that the Agreement permits the contracting
out of work, and that it has been this practice over a period of years to
do so. Carrier contends that the exception contained in Rule 2 (f) is applicable in this case.
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Rule 2 (f) is applicable in this case. Rule 2 (f) provides:
"2 (f) The railroad company may contract work when it does
not have adequate equipment laid up and forces laid off, sufficient
both in number and skill, with which the work may be done."
The issue, as we see it, is similar to the issue that was disposed of by
Awards 11085 (Boyd), 11289 (McMahon), 13979 (Williams), 14122 (Harr)
and 14820 (Lynch), involving these same parties.
We can find no substantial difference between these previous cases and
the instant case.
Therefore, we will deny the Claim.
FINDINGS: The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That the parties waived oral hearing;
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act,
as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was not violated.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 30th day of November 1966.
Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
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